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Open for Business: Tracking the Chamber of Commerce's Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court

Open for Business: Tracking the Chamber of Commerce's Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court

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Published by MyConstitution
In December 2010, CAC released an empirical study examining the success of the U.S. Chamber of Commerce before the Supreme Court during the last 11 years of the tenure of Chief Justice William Rehnquist.
In December 2010, CAC released an empirical study examining the success of the U.S. Chamber of Commerce before the Supreme Court during the last 11 years of the tenure of Chief Justice William Rehnquist.

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Published by: MyConstitution on Dec 12, 2011
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1200 18
th
Street, N.W., Suite 1002, Washington, D.C. 20036 www.theusconstitution.org
43%56%68%57%44%32%0%10%20%30%40%50%60%70%80%90%100%Burger Court(1981-1986)Rehnquist Court(1994-2005)Roberts Court(2006-2010)
Support for Chamber Position by Court
Winning Percentage Losing Percentage
Open for Business: Tracking the Chamber of Commerce’sSupreme Court Success Rate from the Burger Court throughthe Rehnquist Court and into the Roberts Court
The Supreme Court’s 5-4 decision this past January in
Citizens United v. Federal Election Commission
hasfocused a national spotlight on the rulings of the Roberts Court in cases involving the interests of bigbusiness. As we explain in
 A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Futureof Corporate Personhood in American Law 
, the Court’s divided opinion in
Citizens United 
is a sharpdeparture from constitutional text and history and represents the capstone of a sustained effort bycorporate interests to give corporations the same constitutionally protected rights as individuals.To test empirically the question of whether theSupreme Court is siding more frequently withcorporate interests and dividing more sharply alongideological lines in these cases, ConstitutionalAccountability Center has now looked at threeperiods of relative stability on the Court, examiningcases in which the United States Chamber of Commerce – which touts itself as “the voice of business” – participated as either a party, or, moreoften, as an
amicus curiae
, a “friend of the court.”In our first study,
The Roberts Court and Corporations: The Numbers Tell the Story 
, weexamined five Terms of the Roberts Court,beginning when Justice Samuel Alito joined theCourt in early 2006. We found not only that theChamber won 68% of the cases in which it hadparticipated during this period, but also that itssuccess was drawn largely along ideological lines: acohesive, five-Justice conservative majority votedfor the Chamber 74% of the time, over 30 pointsmore often than had the Court’s moderate/liberalbloc. As a follow up,
 A Tale of Two Courts:Comparing Corporate Rulings by the Roberts and Burger Courts
examined the last five Terms of theBurger Court, from the time Justice Sandra DayO’Connor joined the Court in 1981 until the firstmember of the Court’s current conservative majority, Justice Antonin Scalia, joined the Court in 1986.Here, we discovered a very different picture: the Chamber lost more cases than it won, and there was nosimilar ideological division in cases in which the Chamber had participated.Now, in this third study, we fill in most of the gap between our Burger Court and Roberts Court studies,examining the last eleven Terms of the Rehnquist Court, from the beginning of the October 1994 Termuntil the end of the October 2004 Term (June 2005), a stable period with no changes in Court
 
 
December 2010
 
Page | 2
 
0%10%20%30%40%50%60%70%80%90%100%
Support for Chamber Position by Justice
Burger Court (1981-1986) Rehnquist Court (1994-2005) Roberts Court (2006-2010)
membership. There are two major findings from this latest study. First, the Chamber’s win percentageduring these eleven Terms – 56% – was smack in the middle of the Chamber’s 43% win percentageduring the last five years of the Burger Court and its 68% win percentage during the first five years of theRoberts Court. In effect, this means that the Chamber’s overall success before the Supreme Court hasbeen a linear progression upwards over the last 30 years. Second, and more remarkably, this studydocuments that the sharp ideological divide that characterizes the Roberts Court in business cases reallydid not exist before the changes in the Court’s composition in 2005.
The Chamber and the Rehnquist Court from 1994 - 2005
In our study of the Rehnquist Court from the October 1994 Term through the October 2004 Term, theChamber prevailed in 45 of the 80 cases we scored, a win rate of 56%. As noted above, this represents asignificant increase in the Chamber’s success rate compared to the Burger Court-era, when the Chamberprevailed less than half the time (43%). But it is still a far cry from the success the Chamber has enjoyedso far in the Roberts Court, where it has prevailed more than two-thirds of the time (68%).Looking at the votes of individual justices, the shift towards the Chamber looks even more pronounced.Indeed, Justice Kennedy, the member of the Court’s conservative majority who voted for the Chamberthe least in our Roberts Court study (69%), voted for the Chamber more frequently than
any 
justiceduring our Rehnquist Court study, where Justice O’Connor voted for the Chamber the most (65%).Justice O’Connor’s successor, Justice Alito, topped all members of the Court during the Roberts Courtstudy, voting in favor of the Chamber 78% of the time.
 
 
December 2010
 
Page | 3
 
49%61%74%37%48%43%0%10%20%30%40%50%60%70%80%90%100%Burger Court(1981-1986)Rehnquist Court(1994-2005)Roberts Court(2006-2010)
Comparing Support for ChamberPosition by Ideological Bloc
Conservatives Moderates/Liberals
The methodology of our study of the Rehnquist Court is available at:http://theusconstitution.org/blog.history/wp-content/uploads/2010/12/Rehnquist-Chamber-Study-METHODOLOGY-12-17-10.pdf  
 
The Emergence of a Stark Ideological Divide on the Roberts Court
Even more striking than the straight-line increase in the Chamber’s win percentage over our threestudies is the emergence in the Roberts Court of a stark ideological divide, something that was barelydiscernable during the Rehnquist and Burger Court study periods.Comparing the Burger Court to the Rehnquist Court, there was a 13-point increase in the Chamber’s winpercentage, but no discernable increase in the ideological split among the Justices – the Chamber wonmore votes across the Court’s ideological spectrum.A completely different picture emerges when comparing the Rehnquist Court to the Roberts Court: theChamber’s win percentage goes up 12 points, but the ideological split explodes. On the Roberts Court,the difference between the average level of Chamber support among the conservative bloc (74%) andthe moderate/liberal bloc (43%) is 31 points. This difference during Rehnquist Court was only 13 points(61% to 48%), and to the degree one can identify ideological “blocs” on the more ideologically-diverseBurger Court it was just 12 points (49% to 37%).
1
 The gap between the most pro-Chamber and leastpro-Chamber Justices on the Court has also widenedconsiderably. On the Rehnquist Court, thedifference between Justice O’Connor, the mostfavorable to Chamber positions (65%), and JusticeGinsburg, the least favorable (44%), was 21 points.This gap on the Roberts Court has widened to 38points, with Justice Alito ruling in the Chamber’sfavor 78% of the time and Justices Ginsburg andStevens ruling in favor of the Chamber just 40% of the time. As the chart to the right documents, thelevel of Chamber support from the Court’sconservative bloc has increased in an almost linearfashion over time, while the Court’smoderate/liberal bloc has fluctuated within arelatively narrow range.The ideological divide on the Roberts Court is alsoapparent when one looks at the most closely dividedopinions, defined as cases decided by a five justicemajority. Comparing the Rehnquist Court to the
1
We identify the “conservative” bloc on the Burger Court as including Chief Justice Burger and Justices O’Connor, Rehnquist,and Powell, and the “moderate/liberal” bloc as including Justices Marshall, Blackmun, Brennan, Stevens, and White.

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